Ex-investment director of PT Taspen Antonius Nicholas Stephanus Kosasih (center, in Batik shirt) with his legal counsels at the preliminary hearing for the judicial review of the Anti-Corruption Law, Monday (9/2/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the judicial review judicial review of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption and Law No. 20 of 2001 on the Amendment to Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption (Anti-Corruption Law) on Monday, September 2, 2024. The case No. 114/PUU-XXII/2024 was filed by Antonius Nicholas Stephanus Kosasih, former investment director of PT Taspen (Persero).

In his petition, the Petitioner explained that he had been accused of corruption as referred to in the a quo Law, which has been amended by Law No. 20 of 2001, in relation to the company’s investment in 2019 managed by PT Insight Investments Management (PT IIM).

The charge was allegedly based on an optimization policy to save PT Taspen’s assets related to the the ijarah sukuk of PT Tiga Pilar Sejahtera Food, Tbk. (PT TPSF), which could potentially be going bankrupt. The policy has been analyzed by an internal team and an independent external team, approved by the board of directors meeting. This policy was taken as a strategic and discretionary step (freies ermessen) to avoid greater losses for PT Taspen and the state. However, this policy is considered a criminal act of corruption because it is seen detrimental to state finances.

Legal counsel Alex Argo Hernowo believes the discretionary indictment shows an overly broad interpretation of Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law, due to the lack of explicit regulation of prohibited acts (actus reus) in both articles. Furthermore, the Petitioner argued that contradiction in court decisions is an important basis for this petition. In addition to the ongoing debate regarding the judicial review petition of Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law, there are also conflicting court decisions on the application of the two articles. Such a contradiction often arises in cases where the question is whether the defendant’s actions constitute corrupt conduct, a risk of poor policymaking, or simply an administrative offense.

“We believe the revocation of Article 2 paragraph (1) and Article 3 in Law 20/2001, or declaring them to having no legal force, is not an attempt to weaken the law enforcement of corruption. On the contrary, it aims to strengthen clarity and legal certainty in law enforcement of corruption in Indonesia,” Alex said.

He asserted that declaring the a quo article null and void does not mean that acts of corruption cannot be punished, because all acts of corruption have actually been clearly described in other articles in the Anti-Corruption Law.

Thus, the Petitioner requests the Constitutional Court to declare Article 2 paragraph (1) and Article 3 of Law No. 31 of 1999, along with its amendment in Law No. 20 of 2001, unconstitutional. He also requests that the Court declare that the two articles not legally binding for being incompatible with constitutional principles that guarantee fair legal certainty and protect human rights.

Responding to the petition, Constitutional Justice Enny Nurbaningsih advised him to build strong arguments to convince of an issue of norm constitutionality.

“These norms are actually the heart of the Anti-Corruption Law. Why? because it is also used in the new Criminal Code. Try check the new Criminal Code [to see] how [these norms] has impacted the new Criminal Code. Try to make a strong narrative there. You said the formulation [of the norms] is unclear on actus reus, thus creating confusion in its application,” she said.

Before adjourning the hearing, Chief Justice Suhartoyo announced that the Petitioner would have 14 days to revise the petition. It is due to submit by Tuesday, September 17, 2024 at 15:00 WIB.

Author         : Utami Argawati
Editor          : Lulu Anjarsari P.
PR              : Fauzan Febriyan
Translator    : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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